Opinion
No. 01-04-00713-CR
Opinion issued November 16, 2006.
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 971063.
Panel consists of Justices TAFT, JENNINGS, and ALCALA.
OPINION
Appellant, Edward Christensen, appeals from a conviction for state jail felony theft of property valued between $1,500 and $20,000. See Tex. Pen. Code Ann. § 31.03(e)(4) (Vernon Supp. 2005). Appellant pleaded not guilty. The jury found appellant guilty of theft and the trial court assessed punishment at confinement for two years in a state jail facility, suspended for four years of community supervision, and a fine of $1,000. In his first two issues, appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction for theft. We conclude that the evidence is legally sufficient to sustain appellant's conviction. However, because we conclude that the evidence is factually insufficient to establish appellant's criminal intent, we reverse and remand.
Appellant pleaded not guilty to the indictment for the felony offense of engaging in organized criminal activity. See Tex. Pen. Code Ann. § 71.02 (Vernon Supp. 2005). When the State rested its case-in-chief, appellant moved for and was granted a directed verdict on the offense of engaging in organized criminal activity. The trial, however, proceeded on the lesser offense of state jail felony theft.
Because we conclude that the evidence is factually insufficient to sustain appellant's conviction, we need not address appellant's remaining issues that complain that the trial court erred by overruling his motion to quash the indictment that alleged the offense of engaging in organized criminal activity.
Background
Appellant was a deputy with the Harris County Sheriff's Office (the sheriff's office). Since March 1997, appellant was president of the Harris County Deputies' Organization (the organization), a union that is a not-for-profit organization, composed of approximately 3000 rank-and-file deputies. The organization was formed to provide services for the benefit of its members, such as the improvement of employment benefits, the improvement of working conditions, assistance to injured deputies, and assistance to the families of deputies injured or killed in the line of duty. The organization maintained an office run by four officers — president, vice-president, secretary, and treasurer — and eight board members. The organization raised funds for its expenses and activities from fees it received from its members through payroll deductions.
The organization also raised funds through telemarketing. One of the telemarketers used by the organization was Ron Kowalsky. Kowalsky began as a telemarketer for the organization in January 1998 through a written agreement negotiated by William Tabor, the vice-president of the organization, and ratified by the board of directors. The agreement provided that Kowalsky would receive contingency fees that allowed him to keep 75 to 80 percent of the money raised from the "sale of advertising." Although appellant did not participate in the formation of the agreement, he was one of the people who primarily met with Kowalsky when Kowalsky began telemarketing for the organization. Kowalsky's telemarketing that began as "the sale of advertising" later included the solicitation of funds for the organization by mentioning the organization's support for different programs, such as drug awareness and Toys for Tots.
Kowalsky generally followed the same routine in conducting telemarketing for the organization. First, appellant gave Kowalsky a list of various programs that the organization would financially support. Second, Kowalsky drafted correspondence mentioning those programs and tendered the draft to appellant for approval. Each of these drafts of correspondence was substantively similar. Third, appellant would signify approval of the program by signing the proposed correspondence. Appellant signed a number of these letters over a period of years. In addition to approving a program, the letters were occasionally shown by the telemarketers to contributors as proof that the solicitation was for the organization.
The Toys for Tots solicitation was consistent with Kowalsky's general practice regarding telemarketing. Kowalsky "briefly" discussed Toys for Tots with appellant, although Kowalsky could not recall the specifics of the conversation. Kowalsky then drafted the correspondence that mentioned Toys for Tots. Kowalsky sent the draft to appellant for approval, which appellant signed, thereby beginning the telemarketing for Toys for Tots. Appellant later signed another letter approving of the Toys for Tots telemarketing. The two letters signed by appellant regarding Toys for Tots were virtually identical, except the names of the officers and board members shown on the stationery were different, which Kowalsky explained was consistent with his general practice to obtain new letters when the members of the board changed.
The Toys for Tots letter states as follows:
Dear Friend,
On behalf of the Harris County Deputies' Organization, please let me Personally thank you for your generous support.
Every year at this time the Harris County Deputies' Organization lends A helping hand of support to the "TOYS FOR TOTS " program. This Program provides toys for children of families who cannot afford to do So, and to those children who have no family. Just knowing that there Is a light at the end of the tunnel gives hope to these children year after Year. Let us all as a community give what we can in order to bring Some Joy and Laughter into the lives of those who are less fortunate Than others.
Once Again I would like to thank you for your generous support and Cooperation. It is only through such assistance that we can carry on.
Sincerely,
[Signature] Ed Christensen, President Harris County Deputies' Organization
(Emphasis, punctuation, and capitalization in original).
Although Kowalsky initially conducted the telemarketing through his own business, he soon hired subcontractors. One of the subcontractors was John Merritt, who had a telemarketing business consisting of approximately 15 employees seated at rows of tables with telephones. Merritt solicited funds for Toys for Tots on behalf of the organization in 1999 and 2000.
In addition to Merritt, Kowalsky had one other subcontractor, Telemark. Although the record shows generally that Telemark also solicited funds for Toys for Tots in 1999 and 2000, no one from Telemark testified and the record is silent regarding any specifics concerning that subcontractor.
Merritt worked independently, alone deciding the programs for which he would solicit. Kowalsky's sole involvement with Merritt's telemarketing consisted of tendering, in September 1999, the Toys for Tots letter that was signed by appellant, in addition to letters for other programs that were approved by appellant. Merritt had no contact with appellant, nor anyone at the organization regarding the Toys for Tots solicitation.
Merritt used the correspondence that he received from Kowalsky to prepare a script for his employees to read during their telephone solicitations. Merritt also gave copies of that correspondence to approximately ten percent of prospective contributors that requested written verification before making a contribution.
Three contributors testified at trial that they received copies of the correspondence that had appellant's signature. One contributor, Paul Fisher, said that on October 2, 2000, he wrote a check for $150 after receiving by facsimile a letter signed by appellant thanking him for the contribution. Another contributor, Karen Perez, said that on October 18, 2000, she wrote a check for $400 and afterwards received a copy of a thank you letter signed by appellant. Marienne Beckman testified that on November 28, 2000, she wrote a check for $100 on behalf of her employer and that she asked for and received a copy of the letter signed by appellant from the person that came to pick up the check.
Merritt tendered the funds received from contributors to Kowalsky about once a week, but no attempt was made to segregate the funds to determine for which program the funds were raised. Kowalsky took the commingled funds that he received from Merritt to the clerical staff at the organization, who would deposit all the funds into a bank account that belonged to the organization. About two days later, Kowalsky would receive a check from the organization for 75 to 80 percent of the funds that he had delivered to the organization. Appellant and another officer usually signed the check for Kowalsky's payment. Kowalsky kept ten percent of the payment, but tendered the rest to Merritt.
The clerks at the organization who accepted the funds from Kowalsky reported to the treasurer. The treasurer then reported the information to the board at regularly scheduled meetings. Kowalsky went to a couple of board meetings to discuss fundraising, but he did not recall discussing the Toys for Tots program with the board.
When Terry Padilla took over as treasurer for the board in 2000, she noticed that some of the checks received from Kowalsky had Toys for Tots written on the memo line of the checks. Padilla was unaware of the telemarketing for Toys for Tots and asked Kowalsky about the checks. After speaking with Kowalsky, Padilla reported Kowalsky's activities to appellant, who, according to Padilla, was surprised to learn about the Toys for Tots solicitations. In Padilla's presence, appellant made a telephone call to Kowalsky, instructing him to discontinue soliciting funds for Toys for Tots. Padilla and appellant also discussed their desire to donate toys for Toys for Tots at the annual Christmas party hosted by the Mexican American Sheriff's Officers (MASO), another union composed of deputies employed by the sheriff's office. According to Padilla, these events occurred before mid-November.
Kowalsky stated that he did not remember exactly when he was told to stop soliciting for Toys for Tots, but it was "very close" to the time the warrant was executed at Merritt's office and that it "might possibly" have been before the warrant was executed. Merritt, however, said that Kowalsky told him to stop soliciting for Toys for Tots after the search warrant was executed.
On November 16, 2000, a search warrant was executed at Merritt's business after an investigator at the Harris County Attorney's Office learned that Merritt's employees were falsely identifying themselves as peace officers as they made telephone calls requesting donations for the organization. During the execution of the search warrant at Merritt's business, officers recovered the original correspondence signed by appellant that mentioned the Toys for Tots program.
At trial, one contributor reported that a donation was picked up by a uniformed officer, another contributor said that the person who picked up the contribution looked like a Marine, and another contributor said that the solicitor identified himself as a deputy named "Ed."
After the search warrant was executed at Merritt's business, the Toys for Tots telemarketing campaign was discussed at the board's next regularly scheduled meeting. Louis Guthrie, the vice-president, asked appellant whether funds were being raised for Toys for Tots. Appellant responded that he "was going to look into it." At the next meeting of the organization, appellant said that he had "investigated Toys for Tots and anybody could raise money for Toys for Tots." Appellant explained that he had "contacted a Hispanic sergeant at the Marine Corps base who stated it was okay."
The organization never had official permission, authorization or recognition to solicit donations for Toys for Tots, a program exclusively run by the United States Marines Corps. The organization, however, made donations to Toys for Tots. In December 2000, MASO held its annual Christmas party, where appellant arranged for and donated $1,700 worth of bicycles to Toys for Tots that were accepted by uniformed Marines representing Toys for Tots at the party. Kowalsky also personally purchased and donated approximately $500 worth of toys. Several members of the organization recounted that the organization also made at least one other contribution to Toys for Tots before 2000.
The Marine Corps Reserve Toys for Tots Foundation is a charitable organization affiliated with the U.S. Marine Corps Reserves. Because it and the Marine Corps are nationally known, there are strict guidelines for operating procedures. For example, Toys for Tots strictly forbids direct phone or door-to-door solicitation. Groups wishing to affiliate with the program must receive permission, in writing, from the Foundation. Additionally, Toys for Tots is a trademark owned by the Foundation.
In its brief, the State contends that the record only shows two checks of $500 each were donated for toys. However, the record undisputedly shows that the organization donated $1,700 worth of bicycles to Toys for Tots at the 2000 MASO Christmas party.
Although the organization made donations to Toys for Tots, the amount of funds expended for Toys for Tots was substantially less than the amount of funds received from the telemarketing solicitations. David Pilant, a fraud examiner employed by the Harris County District Attorney's office, explained that bank records for the organization show that between September and December 2000, the organization received $20,515 for the Toys for Tots program through 222 checks that had a notation that the donation was for "Toys for Tots." After paying Kowalsky 75 to 80 percent of these funds, the organization kept approximately $4,000 from these checks. After the search warrant was executed and after appellant instructed Kowalsky to stop the telemarketing for Toys for Tots, the organization accepted at least four checks from people who made donations for Toys for Tots. When Kowalsky received these checks from Merritt, someone had scratched out the writing on the checks that referenced Toys for Tots.
At trial, 18 people testified that they would not have sent checks to the telemarketer if they had known that Toys for Tots would not receive the majority of the funds. The record shows, as follows:
• On August 1, 2000, Timothy Stovall wrote a check for $100;
• On October 2, 2000, Michael Likos wrote a check for $200;
• On October 2, 2000, Paul Fisher wrote a check for $150;
• On October 4, 2000, Albert Coveney wrote a check for $100;
• On October 4, 2000, Sandra Wilson wrote a check for $150;
• On October 10, 2000, Malcolm Phillips wrote a check for $500;
• On October 10, 2000, Dr. Gary Flores wrote a check for $250;
• On October 17, 2000, Jimmy Nichols wrote a check for $125;
• On October 18, 2000, Karen Perez wrote a check for $400;
• On October 19, 2000, Norma Young wrote a check for $100;
• On October 25, 2000, Sam Johnson wrote a check for $150;
• On November 8, 2000, Bryant Dussetschleger wrote a check for $250;
• On November 22, 2000, Annika Tycer wrote a check for $100;
• On November 28, 2000, Marienne Beeckman wrote a check for $100;
• On November 29, 2000, John Cartwright wrote a check for $50;
• On December 17, 2000, Richard Stamper wrote a check for $75;
• On November 29, 2000, Santos Guajardo wrote a check for $100; and
• On December 4, 2000, Thomas Clark wrote a check for $100.
The organization received $267,222 in the form of 3143 donations, but the majority of checks had no notation in the memo line referencing any specific program.
Four witnesses testified that they received a telephone call and wrote a check in late November and December 2002 made payable to the organization, specifying Toys for Tots in the memo line of the check, but that when the checks cleared the bank, Toys for Tots had been scratched out. Although Kowalsky acknowledged noticing the Toys for Tots designation had been scratched out when he picked up the checks from Merritt, Kowalsky tendered the checks to the organization, which were then cashed.
The Harris County Attorney's Office filed a civil suit against the organization, resulting in a $125,000 settlement with the organization, Merritt, and appellant. Part of the settlement proceeds were forwarded to the Toys for Tots program.
At trial, appellant's testimony matched Kowalsky's testimony concerning how telemarketing was conducted for the organization by Kowalsky. Appellant said that Kowalsky was supposed to be raising funds for the organization generally and the correspondence was "simply to explain to people what we do." Appellant denied that Kowalsky was authorized to raise funds for any specific program and denied that the correspondence was to be used for solicitations or as a script. Appellant also denied any intent to commit theft. Appellant claimed that the first time that he learned that telemarketers were soliciting for Toys for Tots was when Padilla told him about the checks tendered to the organization by the telemarketers with the Toys for Tots designation. Appellant denied that he had any control over the funds donated by contributors to the organization for Toys for Tots because the finances for the organization were controlled only by the treasurer and board. Appellant claimed that he received no personal benefit from any funds given to the organization for Toys for Tots. As a former Marine, appellant acknowledged that he was very familiar with Toys for Tots.
Appellant testified that the scripts developed by Merritt and Kowalsky were materially misleading. Appellant claimed that Merritt changed the content of the correspondence that appellant signed by misstating the number of deputies, by adding that the donor would receive a decal sticker, by adding that all pledges are tax deductible, by adding that the amount of the gold pledge is $300 and that the amount of the bronze pledge is $100, and by adding that someone would come to the contributor's house to pick up the contribution.
Elements of Theft
Appellant challenges the sufficiency of the evidence to establish his conviction for theft. To establish state jail felony theft, the State had to prove beyond a reasonable doubt, that appellant, either as the principal or as a party with Padilla, Kowalsky, or Merritt, on or about various dates between August 1, 2000 and December 25, 2000
• acted pursuant to one scheme or continuing course of conduct;
• appropriated by acquiring or otherwise exercising control over complainants' money that had an aggregate value between $1,500 and less than $20,000 and over which complainants had a greater right to possession;
• acted with intent to deprive complainants of the money; and
• acted without effective consent of complainants, by deception, by
(i) creating or confirming by words or conduct a false impression of law or fact that affected the judgment of complainants in the transaction, which appellant, Padilla, Kowalsky, or Merritt did not believe to be true; or
(ii) promising performance that affected the judgment of complainants in the transaction, which appellant, Padilla, Kowalsky, or Merritt did not intend to perform or knew would not be performed.
See Tex. Pen. Code Ann. § 31.03(a), (e)(4) (Vernon Supp. 2005).
A person acts with intent when it is his conscious objective or desire to engage in the conduct or cause the result. See id. § 6.03(a) (Vernon 2003). Intent is most often proven through the circumstantial evidence surrounding the crime, rather than through direct evidence. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991). A jury may infer intent from any facts that tend to prove its existence, such as the acts, words, and conduct of the defendant. Id.
Criminal intent is necessary to establish theft. See Ellis v. State, 877 S.W.2d 380, 383 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Failure to perform under a contract, standing alone, does not establish intent or deception to sustain a theft conviction. Tex. Pen. Code Ann. § 31.01(1)(E) (Vernon Supp. 2005); see Ellis, 877 S.W.2d at 383. Proof of intent to commit theft is determined at the time the alleged criminal act is committed. See Reed v. State, 717 S.W.2d 643, 645 (Tex.App.-Amarillo 1986, no pet.) ("To prove its allegation of appellant's intent to deprive Fraught of the money, the State was obligated to establish that intent at the time appellant exchanged the check into cash.").
Law of Parties
It is undisputed that appellant never had any contact with any complainant. His guilt, if any, is only as a party to theft. The Texas Penal Code states that "[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). Criminal responsibility is defined in several ways, one of which is that the defendant, "acting with intent to promote or assist the commission of the offense . . . solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id. § 7.02(a)(2).
When a party is not the "primary actor," the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex.Crim.App. 1985); Miller v. State, 83 S.W.3d 308, 313 (Tex.App.-Austin 2002, pet. ref'd). Proof that a person is a party to an offense may be established with circumstantial evidence that shows that the parties were acting together to accomplish their common purpose. See Wygal v. State, 555 S.W.2d 465, 469 (Tex.Crim.App. 1977); Miller, 83 S.W.3d at 314. The agreement to accomplish a common purpose, if any, must be made before or contemporaneous with the criminal event, but in determining whether one has participated in an offense, the court may examine the events occurring before, during, and after the commission of the offense. Wygal, 555 S.W.2d at 469; Miller, 83 S.W.3d at 314.
Legal Sufficiency of the Evidence
Appellant contends that the evidence is legally insufficient to establish his guilt for theft. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to give their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). A jury is entitled to accept one version of the facts and reject another, or reject any part of a witness's testimony. Id. In our review of the record, we find no direct evidence establishes appellant's guilt. We must determine therefore whether the circumstantial evidence is sufficient to establish appellant's guilt as a party to theft.
Appellant contends that the evidence is legally insufficient because
• the State never charged any of the alleged accomplices with a crime;
• he did not approve or write any of the scripts used by the solicitors during the telemarketing;
• he did not have any contact with Merritt;
• he did not have control over funds for the organization or over the amount of donations made to Toys for Tots;
• he never personally received any funds from the Toys for Tots program;
• donations were made to Toys for Tots from the funds received by the telemarketing;
• his signature was on a thank-you letter, not a solicitation letter; and
• his directions to Kowalsky were to collect donations for the organization generally and not for any specific program.
The State contends that appellant's guilt is established by evidence that shows that (1) appellant signed the correspondence that began the telemarketing for Toys for Tots without obtaining authorization from the Marines; (2) the correspondence is more consistent with a solicitation letter than a thank you letter; (3) the organization made no donations to Toys for Tots before December 2000; (4) the donations to Toys for Tots were inadequate compared to the donations received; (5) appellant misrepresented his knowledge about the Toys for Tots telemarketing by failing to tell the organization that he had signed correspondence mentioning the program, misrepresenting to the organization that anyone could raise funds for Toys for Tots, and inaccurately stating that a Marine had told him that it was permissible for the organization to raise funds for Toys for Tots; and (6) appellant personally benefitted from the funds received from contributors through the stipend that he received for his services as president, through his use of the organization's credit card, and through his membership with the organization.
1. Alleged Accomplices Never Charged With Crime
Appellant contends that the evidence is legally insufficient because the State's alleged accomplices, Kowalsky, Merritt, and Padilla, were never charged with theft. The State responds that appellant can still be guilty as a party to theft even if the alleged accomplices were never charged or convicted of the offense. Section 7.02 of the Texas Penal Code states as follows:
(a)A person is criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense[.]
Tex. Pen. Code Ann. § 7.02(a)(1) (Vernon 2005). Section 7.03 of the Texas Penal Code further provides, "In a prosecution in which an actor's criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense . . . that the person for whose conduct the actor is criminally responsible has been acquitted, [or] has not been prosecuted or convicted. . . ." Id. § 7.03(2) (Vernon 2005) (emphasis added). We therefore conclude that the evidence is not legally insufficient merely because Kowalsky, Merritt, and Padilla were not charged with theft.
2. The Scripts Used by the Telemarketers
Appellant contents that the evidence is legally insufficient because he did not approve or write any of the scripts used by the solicitors during the telemarketing. We agree with appellant that no evidence shows that appellant had any role in the preparation or use of the scripts that were used during telemarketing. The record shows that Kowalsky and Merritt prepared scripts from the correspondence signed by appellant, and that appellant had no role in the preparation or use of the scripts. Because the undisputed evidence shows that appellant had no role in the preparation or use of the scripts by the telemarketers, we conclude that evidence concerning the scripts cannot be used as evidence to show any criminal intent by appellant.
3. Appellant's Contact with Merritt
Appellant contends that the evidence is legally insufficient because he had no contact with Merritt. The undisputed evidence shows that appellant had no contact with Merritt, who was the primary telemarketer who received the funds during the Toys for Tots solicitations. Appellant's contact was with Kowalsky only. It is undisputed that Kowalsky gave no instructions to Merritt regarding for which program Merritt should conduct telemarketing. Merritt testified that he never spoke with appellant about the Toys for Tots fundraising campaign. The undisputed evidence shows that appellant had no role in the way that the telemarketing was conducted by Merritt. We therefore conclude that Merritt's activities, such as the use of telemarketers who claimed to be sheriff's deputies, cannot be used as any evidence of criminal intent by appellant.
4. Appellant's Control Over Disposition of Funds
Appellant contends that the evidence is legally insufficient because no evidence in the record shows that he controlled how funds were spent by the organization. Viewing the evidence in a light most favorable to the jury's verdict, the evidence shows that appellant "called the shots" for the organization, signed most of the checks that paid Kowalsky the percentage of the funds due to Kowalsky from the amount of funds received by the telemarketers, signed most of the checks written for the organization, and used a credit card that belonged to the organization to cover his expenses while performing work for the organization. A rational jury could have determined that appellant controlled funds for the organization by exercising control over the funds. See Tex. Pen. Code Ann. § 31.01(4)(B) (Vernon 2005) (defining "appropriate" as "to acquire or otherwise exercise control over property other than real property").
5. Appellant's Lack of Personal Gain
Appellant contends that the evidence is legally insufficient because no evidence in the record shows that he personally gained from the telemarketing and thus the evidence fails to show that he acted with criminal intent. Evidence that shows that a defendant converts funds for personal use is some evidence of criminal intent to commit theft. See King v. State, 17 S.W.3d 7, 15 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (holding evidence legally sufficient to support theft conviction under law of parties because defendant personally made representations to complainants and converted bulk of unlawfully acquired money to personal use, such as paying personal credit card debt). Viewing the evidence in a light most favorable to the jury's verdict, the evidence shows that appellant was a member of the organization and that the organization received a large amount of funds from the telemarketing, part of which were used towards financing a party. Additionally, appellant received a stipend of $1500 for his services as president of the organization and used the organization's credit card for other expenses that he incurred while performing duties for the organization. A rational jury could have determined that appellant received some personal gain from the funds received from the telemarketing.
6. Donations to Toys for Tots
Appellant contends that the evidence is legally insufficient to establish his criminal intent to commit theft because toys were actually donated to Toys for Tots from the funds received by the telemarketing. Viewing the evidence in a light most favorable to the jury's verdict, the evidence shows that the donation made to Toys for Tots in December of 2000 was not made until after appellant was aware of the investigation into the telemarketing for Toys for Tots and the donation was less than the amount of funds received by the organization from the telemarketing for Toys for Tots. According to the State, only an insignificant amount of "charitable" checks were written by the organization — $2,000 in 1998, $1,050 in 1999, and $5,770 in 2000. The jury could have rationally concluded that the donation in 2000 to Toys for Tots was made only because of the investigation into the telemarketing by the county attorney's office and that the donation was meager in comparison to the amounts received from the telemarketing. Thus, instead of showing appellant always intended for money to be given to Toys for Tots, the circumstances under which the money was given support an inference that appellant was trying to cover up the theft.
7. The Correspondence
Appellant contends that the evidence is legally insufficient because the content of the correspondence fails to establish his intent to solicit funds for Toys for Tots. Viewing the content of the correspondence in a light most favorable to the jury's verdict, the evidence shows that the letter signed by appellant states, "Let us all as a community give what we can in order to bring Some Joy and Laughter into the lives of those who are less fortunate Than others." We conclude that, viewing this statement in a light most favorable to the jury's verdict, this evidence shows that at least part of the correspondence was a solicitation for donations to Toys for Tots.
8. Lack of Consent from the Marines and Representations to the Board
Appellant contends that the evidence is legally insufficient because he did not approve the solicitation of funds for Toys for Tots and thus his lack of consent from the Marines does not show that he had criminal intent. When the evidence is viewed in a light most favorable to the jury's verdict, the evidence shows that appellant knowingly failed to get consent from the Marines to conduct the telemarketing campaign, a program that he said he was familiar with because he was a former Marine.
The State asserts that appellant's deception shows that he had criminal intent. See Ellis, 877 S.W.2d at 383 (holding evidence legally sufficient to establish theft under circumstances that showed that defendant did not perform "anything" for money complainants relinquished to him and that defendant used "deception"); Reed, 717 S.W.2d at 645 (holding evidence legally insufficient to establish theft because "evidence of appellant's failure to perform his contract . . . is not sufficient to prove deception").
The record before us shows deception by appellant. When the board for the organization asked about Toys for Tots, appellant initially feigned ignorance of the Toys for Tots telemarketing by stating only that he would look into the matter, rather than revealing to the board that he had signed the correspondence that mentioned Toys for Tots, and that he had recently discussed the telemarketing with Padilla and Kowalsky. Appellant later falsely represented to the board for the organization that he had "investigated Toys for Tots and anybody could raise money for Toys for Tots" and that he had "contacted a Hispanic sergeant at the Marine Corps base who stated it was okay," statements that the jury could have reasonably inferred were untrue because of appellant's familiarity with the Marines. We conclude that this evidence is some evidence that appellant had criminal intent to commit theft when he approved of the telemarketing that mentioned Toys for Tots without getting approval from the Marines.
9. Appellant's Directions to Kowalsky
Appellant contends that the evidence is legally insufficient because he never directed Kowalsky to solicit funds for Toys for Tots. Kowalsky testified that he began telemarketing for Toys for Tots only after appellant signed the correspondence that mentioned Toys for Tots. Kowalsky said that he discussed the Toys for Tots solicitation with appellant before appellant signed the correspondence. Additionally, appellant was one of the primary people who met with Kowalsky during the time that Kowalsky conducted telemarketing for the organization. We conclude that when this evidence is viewed in a light most favorable to the jury's verdict, it is some evidence that shows that appellant's actions in signing the correspondence served as the impetus for the organization's telemarketing campaign for Toys for Tots.
We conclude that viewing the evidence in a light most favorable to the jury's verdict, the evidence shows that Kowalsky and Merritt appropriated by acquiring or otherwise exercising control over complainants' money that had an aggregate value between $1,500 and less than $20,000. Their telemarketing solicitations gave complainants the false impression that funds donated were for Toys for Tots, when instead some of the funds were used for operating expenses of the organization. See Tex. Pen. Code Ann. § 31.01(1) (Vernon 2005)
We conclude that the circumstantial evidence is legally sufficient to establish appellant's guilt as a party to theft. Viewing the evidence in a light most favorable to the jury's verdict, a jury could rationally have determined that appellant "called the shots" for the organization, signed most of the checks issued by the organization, signed the checks that paid Kowalsky the portion due to Kowalsky from the telemarketing, and that appellant personally benefitted from the funds received from the telemarketing as a member of the organization, which used funds to finance a party for the organization and pay appellant's stipend as President. Further viewing the evidence in a light most favorable to the jury's verdict, we conclude that the jury could have reasonably inferred that appellant had criminal intent to commit theft at the time that the telemarketing for Toys for Tots began because appellant failed to donate toys to Toys for Tots until December 2000, after the investigation into the telemarketing by the county attorney's office became public, and the donation was meager in comparison to the amounts received from the telemarketing.
We conclude further that when the evidence is viewed in a light most favorable to the jury's verdict, the jury could have reasonably inferred that appellant had criminal intent to commit theft because appellant's signature on the correspondence was the impetus for the Toys for Tots telemarketing that occurred without any authority from the Marines, appellant made false statements to the organization about his authority to conduct telemarketing for Toys for Tots, appellant failed to obtain consent from the Marines when he knew that such consent was required, and appellant failed to be candid with the organization about his role in the telemarketing for Toys for Tots. Although no direct evidence establishes appellant's criminal intent at the time the contributors were deceived by Merritt and Kowalsky, appellant's conduct after the contributions were made — feigning ignorance of the Toys for Tots telemarketing when asked about it by the organization's board and falsely telling the board that a Marine sergeant had given him permission to collect for Toys for Tots — is circumstantial evidence that shows appellant had criminal intent when he failed to obtain authorization from the Marines to accept donations for Toys for Tots. See Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App. 1979) (noting event after alleged crime, such as flight from scene, is circumstance from which guilt may be inferred); Sosa v. State, 177 S.W.3d 227, 230 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (following Valdez). We hold that a rational fact finder could have found the essential elements of theft beyond a reasonable doubt and that the evidence is thus legally sufficient to establish appellant's guilt as a party to theft.
Factual Sufficiency
Appellant also contends that the evidence is factually insufficient to establish his guilt for theft. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, ___ S.W.3d ___, 2006 WL 2956272 at *10 (Tex.Crim.App. Oct. 18, 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5.
Appellant repeats the same assertions regarding the reasons that the evidence is factually insufficient as he stated in his legal sufficiency complaint.
1. Alleged Accomplices Never Charged With Crime
As we stated in our legal sufficiency of the evidence analysis, appellant may be convicted of theft as a party to the offense even if the alleged accomplices were not charged with the crime.
2. The Scripts Used by the Telemarketers
As we noted in the legal sufficiency of the evidence analysis, the evidence undisputedly shows that appellant had no role in the preparation or use of the scripts that were used during telemarketing.
3. Appellant's Contact with Merritt
As we also determined in the legal sufficiency of the evidence analysis, the evidence undisputedly shows that appellant had no contact with Merritt, the primary telemarketer that received the funds during the Toys for Tots solicitations.
4. Appellant's Control Over Disposition of Funds
In our legal sufficiency of the evidence review of the evidence in a light most favorable to the jury's verdict, we concluded that some evidence showed that appellant controlled funds for the organization because he "called the shots" for the organization, signed most of the checks that paid Kowalsky for the telemarketing, signed most of the checks issued by the organization, and used a credit card that belonged to the organization to cover his expenses while performing work for the organization. When the evidence concerning appellant's control over the organization's funds is viewed neutrally, however, the overwhelming evidence shows that he lacked control over the disposition of funds.
A witness testified that appellant "called the shots" for the organization, but that testimony is contrary to the overwhelming weight of the evidence that shows that appellant did not control the organization's funds. The constitution and bylaws for the organization provide that the board of directors, not the president, controls the disposition of funds. No evidence shows that appellant voted or participated in the decision to spend funds received from the telemarketers for the general purposes of the organization, such as the organization's Christmas party in 1999. Thus, although appellant generally called the shots for the organization, when that evidence is viewed neutrally and in light of contrary evidence, the great weight and preponderance of the evidence in the record shows that the board, not appellant, decided how the organization's funds would be spent.
We also noted in our legal sufficiency review that the record shows that appellant signed most of the checks written by the organization and signed most of the checks written as payment to Kowalsky for the telemarketing. But when the evidence is viewed neutrally and in light of contrary evidence, the evidence shows that appellant merely acted in conformance with the constitution and bylaws for the organization, which provided that the president and treasurer are the preferred signatories for checks written by the organization. Although appellant carried out the ministerial duty of signing the checks, the board exclusively controlled the decisions concerning how funds for the organization were spent. Moreover, appellant's signature on the check that paid Kowalsky for his telemarketing services shows only that appellant was aware of the amounts paid to Kowalsky and does not constitute evidence that appellant was aware of the content of the telemarketing. We note further that although appellant had use of a credit card that belonged to the organization, the use of that credit card was limited to covering his expenses while performing work for the organization. We conclude therefore that the great weight and preponderance of the evidence shows that appellant did not make the decisions regarding how the funds received from the Toys for Tots solicitations would be spent.
5. Appellant's Lack of Personal Gain
We noted in our legal sufficiency review that some evidence in the record shows that appellant personally gained from the telemarketing because funds received from the telemarketing were used to host a party. We also noted that appellant received a stipend and used a credit card in his role as president of the organization. When the totality of the evidence introduced at trial is considered and viewed neutrally, the great weight an preponderance of the evidence in the record shows that appellant did not personally benefit from the Toys for Tots solicitations.
The evidence is undisputed that appellant never received any funds that had not been approved by the board. Appellant's receipt of a stipend of $1,500 for his services as president of the organization and use of the organization's credit card for other expenses that he incurred while performing duties for the organization were his benefits regardless of whether funds were collected through the Toys for Tots program. Appellant was also a member of the organization and attended the Christmas party, but, as discussed above, the decision to finance the party with funds raised by the telemarketers was made by the board and not by appellant. The record also shows that expenses incurred by the organization, such as appellant's stipend and use of the credit card were primarily paid by the members' dues. We conclude therefore that the great weight and preponderance of the evidence shows that appellant did not personally benefit from the funds received from the Toys for Tots solicitations.
6. Donations to Toys for Tots
As we noted above, when the evidence is viewed in a light most favorable to the jury's verdict, some evidence shows that appellant had criminal intent to commit theft because he failed to donate toys to Toys for Tots until the investigation into the telemarketing became public and failed to adequately compensate Toys for Tots commensurate with the amounts received by the organization through the solicitations. In our neutral review of the total record, however, the evidence overwhelmingly shows that the organization made more than one donation to Toys for Tots in amounts determined by the treasurer and not appellant.
The overwhelming weight of the evidence shows that the organization donated toys to Toys for Tots in December 2000 and at least once prior to December 2000. Padilla stated that on at least two occasions the board voted to buy toys for Toys for Tots to be donated at the MASO Christmas party and that checks were written for that purpose, although she did not know to whom the checks were made payable because the checks could have been written to the person purchasing the toys or the store where the toys were purchased. Marty Rocha testified that he has been a member of MASO for nine years, that he solicited money from the organization several times for MASO's Toys for Tots event, and that he received at least one $500 check for Toys for Tots in 1998 or 1999. Sammie Rinehart also testified that she recalled Rocha coming in several times and getting several donations for Toys for Tots. Appellant similarly testified that donations were made to Toys for Tots before December 2000.
The only witnesses to possibly suggest that the organization may not have donated toys to Toys for Tots prior to December 2000 were Guthrie, Tabor, and the State's fraud examiner, but their testimony was speculative. Guthrie was vice-president after Tabor left in 1999, through 2000, and he was also a board member beginning in 1997 or 1998. Guthrie's testimony only tentatively stated that he was "not aware" of any toy donations that were made before November 2000. Tabor, the vice-president, denied knowledge of any requests for the board to purchase toys for Toys for Tots, but he left the organization in October 1999, before the donations were made in 1999 and 2000. The State's fraud examiner testified that no checks written by the organization had a notation mentioning Toys for Tots, but he conceded that some checks had no notations. Although Guthrie, Tabor, and the fraud examiner speculate that no donations were made to Toys for Tots before 2000, the only direct evidence in the record from Padilla, Rocha, and Rinehart establishes that the organization supported Toys for Tots for years. Even if the jury disregarded testimony from Padilla, Rocha, and Rinehart because it found them not credible, the evidence fails to establish that no donations were made to Toys for Tots.
Additionally, the State contends that only a small amount of funds were donated to Toys for Tots and only an insignificant amount of "charitable" checks were written by the organization. The evidence shows, however, that appellant was not the person responsible for receiving checks from Kowalsky or determining the amounts due to Toys for Tots. The clerks received the funds and reported the amounts to the treasurer. Padilla, the treasurer, testified that she calculated that $1,700 was the correct amount to donate to Toys for Tots because that was the amount that she believed the organization had received from the Toys for Tots telemarketing. Appellant, therefore, had no role in determining the amounts due to Toys for Tots from the proceeds received from the telemarketers. Additionally, although the telemarketers kept 75 to 80 percent of the contributions they received from the telemarketing, Tabor and the board entered into this financial relationship, not appellant. We thus conclude that the great weight and preponderance of the evidence shows that the organization made more than one donation to Toys for Tots in amounts determined by the treasurer and not appellant.
7. The Correspondence
In our legal sufficiency review, we viewed the evidence in a light most favorable to the trial court's verdict and concluded that the statement in the letter that says, "Let us all as a community give what we can in order to bring Some Joy and Laughter into the lives of those who are less fortunate Than others" is more than a scintilla of evidence of a solicitation. When that statement is viewed neutrally and in light of the totality of the letter and evidence in the record, the single statement in the letter is greatly outweighed by evidence that the letter was not a solicitation and was not deceptive or untrue.
The great weight and preponderance of the evidence shows that the organization acted in accordance with its representations in the letter, which state, "Every year at this time the Harris County Deputies' Organization lends A helping hand of support to the ` TOYS FOR TOTS ` [sic] program." As noted above, the great weight and preponderance of the evidence shows that the organization donated toys to Toys for Tots in December 2000 and at least once prior to December 2000. The correspondence also commits to "support" Toys for Tots, without stating any particular amounts or percentages. As noted above, appellant was not the person responsible for receiving checks from Kowalsky or determining the amounts due to Toys for Tots. We also noted above that the treasurer was the person who calculated that $1,700 was the correct amount to donate to Toys for Tots. We conclude that the great weight and preponderance of the evidence shows that the organization acted in accordance with the representations made by appellant in the correspondence and that the statements in the correspondence were not untrue or deceptive.
8. Lack of Consent from the Marines and Representations to the Board
As we noted in our legal sufficiency of the evidence review, some evidence in the record shows that appellant had criminal intent because appellant had no consent from the Marines to collect funds for Toys for Tots and then made false statements about his authority to raise funds for Toys for Tots. When this evidence is viewed neutrally, however, and in light of the entire record, the evidence fails to show that appellant had the criminal intent to commit theft. Evidence that suggests that appellant had criminal intent due to his failure to obtain consent from the Marines is greatly outweighed by evidence that funds collected by the organization were used to purchase toys that were donated to Toys for Tots at the MASO Christmas parties. Additionally, appellant's statement that he was aware of the Marines' Toys for Tots program, when viewed in a light most favorable to the jury's verdict, suggests that appellant intentionally disregarded the need to obtain consent from the Marines. But when that self-professed awareness of Toys for Tots is viewed neutrally, the statement lacks clarity regarding to what appellant was referring.
In our legal sufficiency of the evidence review, we noted that appellant's lack of candor with the board for the organization also shows his criminal intent. Although appellant did not disclose his knowledge about the telemarketing when the board asked about it, his statement to the board that he would look into it, when viewed neutrally, could fairly be viewed as a statement merely intended to defer a discussion until a later time. Similarly, appellant's representations to the board that the amounts donated to Toys for Tots were sufficient, when viewed neutrally, were premised on information provided by the treasurer to him. Thus, even if the jury found incredible appellant's statements to the board and at trial, the evidence fails to establish appellant's criminal intent to commit theft. See Tippit v. State, 41 S.W.3d 316, 326 (Tex.App.-Fort Worth 2001, no pet.) (noting that disbelief of defendant's testimony does not provide otherwise absent evidence of criminal intent); Coleman v. State, 832 S.W.2d 409, 413 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (noting that intent must be proved beyond reasonable doubt and cannot be left to speculation or surmise). We conclude that in our neutral review of the entire record, the great weight and preponderance of the evidence contradicts the jury's verdict that appellant had the criminal intent to commit theft.
9. Appellant's Directions to Kowalsky
When we viewed the evidence in a light most favorable to the jury's verdict, we concluded that the evidence shows that appellant's signature on the correspondence was the impetus for the telemarketing for Toys for Tots because Kowalsky began the telemarketing only after discussing the matter with appellant and receiving the signed correspondence from appellant. The record shows, however, that although Kowalsky remembered discussing Toys for Tots with appellant, he could not recall any specifics of the conversation.
Viewing the entire record neutrally, we conclude that no direct evidence establishes that appellant had criminal intent to commit theft. To the contrary, the direct evidence in the record establishes that appellant had no criminal intent. Kowalsky testified that he did not conspire with appellant to commit a criminal act. Merritt testified that he never spoke with appellant about the Toys for Tots fundraising campaign. Merritt also stated that he did not think he unlawfully acquired the contributors' money. Moreover, appellant denied having any intent or agreement with Kowalsky or Merritt to "scam" or steal from contributors. Kowalsky also testified that there was nothing unusual about the way the Toys for Tots letter was handled compared to other letters appellant had signed in the past.
We conclude that the strongest evidence of appellant's guilt for theft is shown through evidence that appellant signed the letter that served as the authority for the beginning of telemarketing campaign that mentioned Toys for Tots without authority from the Marines. Although that proof of appellant's guilt as a party to theft is adequate if taken alone, we conclude that the great weight and preponderance of the evidence contradicts the jury's verdict of guilt. Watson, 2006 WL 2956272 at *10. The contrary proof overwhelmingly shows that none of the statements in the correspondence signed by appellant were untrue or deceptive, the organization made donations to Toys for Tots through MASO, appellant did not personally benefit from the Toys for Tots solicitations, appellant did not receive any of the funds from the telemarketers, appellant did not control how the funds received from the telemarketers would be expended, and appellant did not control the manner in which the telemarketers conducted their solicitations.
Viewing all of the evidence in a neutral light, both for and against the jury's finding of guilt, we conclude that the great weight and preponderance of the evidence contradicts the jury's verdict of guilt. Id. Accordingly, we hold that the evidence was factually insufficient to support the appellant's conviction as a party to theft.
Conclusion
We reverse the judgment of the trial court and remand this cause.
DISSENTING OPINION
Because the majority errs in concluding that the evidence is legally sufficient to support the conviction of appellant, Edward Christensen, of the state jail felony offense of theft by deception as a party and in overruling his first issue, I respectfully dissent.
I agree with the majority that because appellant never had any contact with any of the complainants, "[h]is guilt, if any, is only as a party" to the offense of theft by deception. Here, however, there is no evidence that appellant, acting with intent to promote or assist the commission of the offense of theft by deception, did in fact solicit, encourage, direct, aid or attempt to aid another person to commit the offense.
See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). Nor is there any evidence that appellant, acting with the kind of culpability required for the offense of theft by deception, did in fact cause or aid an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense. See id. 7.02(a)(1).
The Texas Penal Code provides that a person commits the offense of theft if he "unlawfully appropriates property with intent to deprive the owner of property." Id. § 31.03(a) (Vernon Supp. 2005). Appropriation of property is unlawful if "it is without the owner's effective consent." Id. § 31.03(b)(1). Consent is not effective if "induced by deception." Id. § 31.01(3)(A) (Vernon Supp. 2005). "Deception" means:
(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true; or
. . . .
(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform of knew the promise would not be performed.
Id. § 31.01(1)(A),(E). Moreover, a person acts intentionally or with intent "with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." Id. § 6.03(a) (Vernon 2003). In theft cases, the "[r]elevant intent to deprive the owner of property is the accused's intent at the time of the taking." Wilson v. State, 663 S.W.2d 834, 836-37 (Tex.Crim.App. 1984).
In its charge to the jury, the trial court appropriately tracked the language of the above statutory provisions, and the State had the burden to show that appellant actually intended that the consent of the complainants in this case be induced by deception as defined above.
The State argues that the evidence is legally and factually sufficient to support appellant's conviction for the offense of theft by deception because "appellant induced others to gain money for [the Harris County Deputies' Organization ("HCDO")] by soliciting donations on behalf of the Toys for Tots program (1) when those donations were not intended to be provided to — and were not provided to — the Toys for Tots program, (2) when those donations would not have been provided had it not been represented that the donations were being made on behalf of the Toys for Tots program, and (3) when those donations were in fact not provided to the Toys for Tots program, but were instead used to pay stipends to the appellant and other members of the Board of the HCDO."
In support of this argument, the State relies exclusively on the following letter signed by appellant:
Dear Friend,
On behalf of the Harris County Deputies' Organization, please let me Personally thank you for your generous support.
Every year at this time the Harris County Deputies' Organization lends A helping hand of support to the "TOYS FOR TOTS " program. This Program provides toys for children of families who cannot afford to do So, and to those children who have no family. Just knowing that there Is a light at the end of the tunnel gives hope to these children year after Year. Let us all as a community give what we can in order to bring Some Joy and Laughter into the lives of those who are less fortunate Than others.
Once Again I would like to thank you for your generous support and Cooperation. It is only through such assistance that we can carry on.
Sincerely,
[Signature] Ed Christensen, President Harris County Deputies' Organization
(Errors in original.) The State asserts that, by signing the letter, "appellant approved the telephone solicitation or marketing of individuals to donate money to the HCDO on behalf of the Toys for Tots program."
The State contends that "the letter authorized and signed by appellant was to induce donations to the HCDO on behalf of the Toys for Tots program when in fact it was clear that those donations would not be provided to the Toys for Tots program." The majority agrees that "at least part of the correspondence was a solicitation for donations to Toys for Tots." However, the very first sentence of the letter expressly indicates that it is in fact a thank you letter for donations already received by the HCDO. After thanking the addressee for their support, the letter goes on to note that the HCDO "lends A helping hand of support" to the program.
The distinction here is critical. Again, the State had the burden to prove, at the time of the taking of the complainant's money, either that appellant, acting with intent to promote or assist the commission of the offense of theft by deception, did in fact solicit, encourage, direct, aid or attempt to aid another person to commit the offense, or, acting with the kind of culpability required for the offense, did in fact cause or aid an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense.
The majority notes that although Ron Kowalsky, the telemarketer hired to solicit funds for the HCDO, "could not recall the specifics" of his conversation with appellant about Toys for Tots, the solicitation was consistent "with Kowalsky's general practice regarding telemarketing." Here, the record reveals the following exchange:
[State]:Ed Christensen. Okay. Did you discuss the Toys for Tots Program and solicitation with Mr. Christensen before you began soliciting for that?
[Kowalsky]:I remember drafting a letter, putting a letter in his mailbox to have it approved or disapproved.
After appellant signed the letter, Kowalsky began telemarketing for the HCDO. Subsequently, he subcontracted with John Merritt to solicit funds on behalf of the HCDO, and he gave the letter to Merritt.
However, as noted by the majority, there is no evidence that appellant had any role in the preparation or use of the scripts that were employed by the telemarketers. There is no evidence that he knew what the telemarketers were representing to the complainants to obtain their money. For example, there is no evidence that appellant knew that the telemarketers were misrepresenting themselves as Harris County Sheriff's Deputies and specifically asking for donations for Toys for Tots and not the HCDO. Also, as noted by the majority, Merritt had no contact with appellant or anyone else at the HCDO, and he worked independently. Nevertheless, because appellant signed the letter, and because Kowalsky "discussed the Toys for Tots solicitation with appellant" and appellant was "one of the primary people who met with Kowalsky," the majority concludes there is "some evidence that shows that appellant's actions in signing the [letter] served as the impetus for the organization's telemarketing campaign for Toys for Tots."
Although appellant's signature on the letter may have been the impetus for the telemarketing campaign, it cannot be inferred that, by signing the letter, appellant, actually intended for Kowalsky or anyone else to make misrepresentations to the complainants to obtain their money. The presence of his signature on the letter does not support the inference that appellant, acting with intent to promote or assist the commission of the offense of theft by deception, did in fact solicit, encourage, direct, aid or attempt to aid another person to commit the offense. Nor can it be inferred from his signature on the letter that appellant, acting with the kind of culpability required for the offense of theft by deception, did in fact cause or aid an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense. Kowalsky's very limited testimony about his dealings with appellant also does not support any such inferences.
Appellant testified that Kowalsky was to raise funds for HCDO, and it should be noted that Kowalsky himself did not testify that he ever informed appellant that he would use the letter to raise money for Toys for Tots and not the HCDO. The bottom line is that there is no evidence in the record that appellant either used or encouraged Kowalsky or anyone else to make misrepresentations to the complaints to obtain their money.
The majority concludes that the record "shows deception by appellant" because appellant, when confronted, initially "feigned ignorance of the Toys for Tots telemarketing by stating only that he would look into the matter" and later "falsely represented" to the HCDO board that he had "investigated Toys for Tots and anybody could raise money for Toys for Tots" and that he had "contacted a Hispanic sergeant at the Marine Corps base who stated it was okay." It should be noted that there is no evidence in the record that appellant did not in fact investigate the program and talk to a sergeant about it. More importantly, as noted above, in theft cases, the deception must be directed at the complainants and the "[r]elevant intent to deprive the owner of property is the accused's intent at the time of the taking." Wilson, 663 S.W.2d at 836-37 (emphasis added). Here, again, there is no evidence in the record that appellant either used or encouraged Kowalsky or anyone else to make misrepresentations to the complaints to obtain their money.
Accordingly, I would sustain appellant's first issue, reverse the judgment of the trial court, and render judgment of acquittal.